I am thinking of selling my home. I suspect but am not sure that there may be an encroachment issue with my neighbor’s fence being on my property. I’ve never had a survey, so I don’t know this for a fact. I figure if someone makes an offer on my home, they will possibly have a survey done. If a survey yields that the fence is in fact on my property, they may insist that the fence be moved or bailout of the contract all together. Isn’t there a way I can deed the portion of my property is on to the neighbor to avoid the hassle of requesting them to move the fence. It would be a very small section of land, if, in fact, it is on my property at all. Or should I just gamble that any potential buyer is not going to bother with a survey. I figure I don’t have to mention it on the listing agreement since I don’t have material knowledge of an encroachment.
First, if your country has plat maps on their property web site I would down load a plat map and then make my own measurements. This would be an unofficial survey and might make it easier for you to make your decision on how to proceed from there.
If you do not disclose a known defect you could be found liable for damages claimed by the buyer. It’s the law in many places.
As a broker, the advice I gave to all my sellers was disclose, disclose, disclose. If a buyer knows of the problem and acknowledges it in writing at the beginning it won’t blow up the sale. If they discover it on their own, they may use it to leverage a concession from you.
I’ll give you my thoughts. Keep in mind what you’re paying for them!
I had an encroachment problem once and looked into the legal options. Easiest is to write a letter of permission to the neighbors, giving them permission to have the fence on what you think is your land, but asking them to do a proper survey when they need to replace the fence. You giving them permission establishes you as the owner, until a proper survey is done, which is when you’ll all find out who owns it.
Another option is an official lot line adjustment. For me, that entailed doing a proper survey, getting paperwork from the city, adjusting the property line to everyone’s satisfaction, getting $$$ from the neighbor, and paying fees. Supposedly this would affect our respective lot sizes, and then our property taxes. We did the letter of permission instead.
I don’t know about where you live, but where I am, buyers don’t do full, proper, 4-corner type surveys when buying the house. There’s a quicker & cheaper survey that just compares the property stakes found along the street with the plats…hmm, yeah, we’re good. They don’t traipse into the woods to find the other corners, measure the angles and lines to the back, etc. So your buyers may not learn about the encroachment of the fence unless they cough up the bigger bucks for better survey.
If your house was built some time ago, it’s quite possible that a survey with today’s instruments will be more accurate than those used when when building, and it’s almost common nowadays to find “the lines have moved.”
Also, if you ever do a lot line adjustment, or have an encroachment dispute, be sure to hire a survey company to do a survey for YOU. Don’t rely on the neighbor’s survey. The job is done for the person who pays.
Surveyors are licensed in most places. A licensed surveyor is obligated by law to do a valid and accurate survey. That requirement is independent of who pays for the survey. The surveyor stakes their license on the accuracy of the survey.
You may be confusing the right to use documentation, (usually an as-built drawing or a plat,) with the accuracy of the survey itself. They are typically restricted to the use of the individual who paid for the survey. It’s like buying a DVD or a book about a story, it’s the product of of the person producing it and they own the rights to it.
Because of the amount of money involved and the variance of laws by states I suggest talking to a real estate lawyer.
That cost money but not talking to a lawyer might cost $$$$$$$$$$$$$$$$$.
If you talk to a lawyer ask him if adverse possession law applies in your state and how that might affect your situation.
Yes, but the key word here might be known. I don’t actually know for sure; I am only speculating. If I had a survey done that yielded an encroachment then I would most definitely disclose it, Disclosing what I suspect, not so sure.
If I were representing you as a seller I would have you sign a “seller has been advised by agent ______ _________.” If you’ve discussed the situation with anyone, especially a neighbor, there’s a good chance the buyer will discover it.
Surprises are almost always bad news in real estate transactions.